Dying Without a Will
In South Africa, if a person dies without a will, they are classified as dying intestate. This triggers a legal process governed by the Intestate Succession Act which determines how your estate is divided. While the process is meant to be fair, it may not be what you would have wanted, that’s why it’s so important to have a will.
The Problems of Dying Without a Will
Dying without a will creates big problems and delays. Without instructions, the deceased’s estate is frozen, and your family can’t access the funds to pay for day-to-day expenses and unexpected costs. The legal system then goes into a full-blown investigation of the estate, a process that can be long, stressful, and expensive.
One of the biggest problems with intestate succession is that it may not reflect what you would have wanted. Critical personal concerns such as caring for children with special needs or ensuring support for dependents can be overlooked if not specified in a will.
Why You Need a Will
A valid will is a roadmap for how your estate should be handled. Not only does it protect your wishes for asset distribution but it also eases the burden on those left behind. By spelling out your wishes you avoid potential conflicts and administrative headaches for your family and loved ones.
Assets Not in a Will
Some assets don’t go through a will. These assets are not part of the intestate succession process because of how they are titled or designated:
– Life Insurance Policies: The proceeds are paid out to the beneficiaries nominated in the policy documents and bypass the estate.
– Jointly Owned Property: Assets in joint tenancy such as family homes pass directly to the surviving owner without a will for that.
– Retirement Accounts: Accounts with beneficiaries are paid out to them and bypass the estate.
Appointing Someone to Manage Your Estate
A key part of having a will is the ability to appoint an executor to manage deceased estates. This person is responsible for ensuring your wishes are carried out as per your will. The executor must be someone you trust and can manage finances and deal with beneficiaries.
What if there’s no Will?
If there’s no will, the intestate estate administration falls to the courts. In South Africa, the court will appoint an administrator – possibly someone the deceased would not have chosen. This court-appointed administrator will settle the estate, pay debts and taxes, and distribute the assets according to the legal heirs.
If there are multiple people who can apply for this role, the court will appoint an administrator based on their relationship to the deceased. The hierarchy is the spouse, then children, and then other close relatives.
Who Inherits the Estate: Surviving Spouse and Others
South African intestate succession laws determine how an estate is divided if there is no will. The primary beneficiaries are usually the surviving spouse or partner and any surviving children. If the deceased has no immediate family then extended relatives such as parents or siblings may inherit. In rare cases where there are no relatives then the estate may go to the state.
Exclusions
Some people may be excluded from inheriting, such as those involved in the deceased’s death. Parents who failed in their duties, like neglecting their children, may also be disqualified from an inheritance.
Intestate Succession Terms
Knowing the terminology is important for intestate succession:
Children’s Inheritance Rights: Generally all children whether biological or adopted have the right to inherit. However stepchildren and children born out of wedlock may face complexities with paternity proof often required for inheritance rights.
Issue Per Stirpes: This means a way of distributing an estate based on family branches where descendants inherit a portion of the estate that a parent would have got if they were alive.
Spousal Rights: Legal recognition of marriage including common-law and same-sex partnerships is necessary for spousal inheritance.
Customary Marriages: Legal recognition of customary marriages is necessary for spousal inheritance.
Additional Pitfalls
Intestate succession laws don’t consider some scenarios so you need to plan for:
Estate Taxes: Without proper planning, the estate may be subject to significant estate taxes, reducing the assets passed on to beneficiaries.
Minor Children: Without a will the courts will appoint guardians for minors and make these important decisions without the deceased’s input.
Simultaneous Death: South African law has rules for when spouses die simultaneously or within a short period and what happens to the assets.
Financial Dependents: Ongoing financial support to dependents like elderly parents may stop without a will and then there’s no provision for continued support.
Different Family Situations
You need to consider different family arrangements when planning your estate. South African law recognises different family structures which may impact how the estate is divided. A will allows you to tailor the inheritance process to your family dynamics. The Civil Union Act recognizes same-sex partnerships, ensuring their rights to inherit under intestate succession laws.
Why Estate Planning
Estate planning is important to protect your assets and your wishes. Writing down your wishes in a binding will reduces the risk of mismanagement or misallocation of your estate.
In South Africa creating a will is not just about asset distribution. It’s a holistic strategy to manage financial, legal and family complexities. With proper estate planning you can:
- Implement strategies to reduce estate taxes, ensuring more assets are passed on to beneficiaries.
- Appoint guardians for minor children so they are cared for.
- Specify funeral arrangements and other personal requests.
- If applicable specify business continuity.
Create a Will with LegalWills.co.za
LegalWills.co.za is an easy online platform to create a customised will that complies with the specific laws of South Africa from the comfort of your own home. The platform makes will creation simple so you can protect your legacy.
Creating a will doesn’t take long but gives you peace of mind that your affairs are in order. Whether you have unique family circumstances, business interests or charitable donations to consider LegalWills.co.za has the tools to express your wishes clearly and legally.
Conclusion
By having a comprehensive and binding will you’ll protect your assets and your family and loved ones. Make this part of your estate planning a priority so you can control your legacy and give clarity and peace of mind to those you leave behind. Take the time to create and update your will so your wishes are honoured and your loved ones are looked after.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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